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[2018] ZAGPPHC 351
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Letzler N.O obo Van Zyl v RAF (34634/2015) [2018] ZAGPPHC 351 (12 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO:34634/2015
12/3/2018
In the
matter between:
ADV M
LETZLER N.O. obo
JACOBUS
FRANCOIS VAN
ZYL
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
RANCHOD J:
[1] The plaintiff, in
her capacity as the duly appointed curator-ad-litem of Mr.
Jacobus
Francois Van Zyl (Van Zyl), claims damages from the defendant for
injuries sustained by Van Zyl in a motor vehicle collision
on 9 June
2011 on the Old Johannesburg Road, Wierdabrug, Pretoria between a
motor vehicle with registration letter and numbers
[….] (as
per the particulars of claim but it seems to me that the numeral '5'
is in fact a 'G' if one has regard to the
police accident report)
driven at the time by one T. Nkosi (the insured driver) and motor
vehicle with registration letters and
numbers [….] driven at
the time by Van Zyl.
[2] The matter was set
down for trial before me on 1 November 2017 in respect of
both merits
and the quantum.
[3] At the
commencement of the trial I was informed that due to the serious
injuries
sustained by Van Zyl he was unable to testify regarding the
circumstances of the collision. There was no one else on behalf of
the plaintiff who could do so. Only the insured driver could shed
light on the cause of the collision. However, the insured driver
was
not present at court although he had apparently told defendant's
attorney that he would be.
[4] Plaintiffs counsel
then sought to hand up a signed statement of the insured
driver dated
24 October 2017 which was obtained by assessors Malesa &
Associates who were appointed by the defendant to investigate
the
merits of the case. Although it is drafted in the form of an
affidavit, it has not been signed before a commissioner of oaths.
Counsel said it was the best evidence available in the circumstances
as plaintiff cannot provide a version to the court about the
collision.
[5] Defendant's
counsel objected to the insured driver's statement being handed
up in
the circumstances as it is not known why the insured driver was not
at court and why he was not answering his phone. The
assessor was
also not at court.
[6] The position was
that there is neither a version on behalf of the plaintiff
nor on
behalf of. the defendant. The defendant did not consent to the use of
the insured driver's statement as evidence. It had
no evidentiary
value as it was not on affidavit. Counsel also submitted that the
defendant has not accepted the assessor’s
report so it too, is
not before court. It is for the plaintiff to prove his case and he
had ample opportunity to do so. Plaintiff
could have called the
insured driver to court as he knew long ago that he was not able to
give a version of the collision. Hence,
said defendant's counsel,
there should be absolution from the instance.
[7] Rule 38(2) of the
Uniform Rules of Court provides -
'The witnesses at the trial of any action shall be ex
mined
viva voce,
but a court may at any time, for sufficient
reason, order that all or any of the evidence to be adduced at any
trial be given on
affidavit or that the affidavit of any witness be
read at the hearing, on such terms and conditions as to it may seem
meet: Provided
that where it appears to the court that any other
party reasonably requires the attendance of a witness for
cross-examination,
and such witness can be produced, the evidence of
such witness shall not be given on affidavit.'
[8] The first
thing to note is that the sub-rule provides that the evidence must be
on
affidavit. The insured driver's evidence sought to be adduced is
merely a statement and not an affidavit. Secondly, it is not clear
why the insured driver was not at court. His attendance could yet be
secured by either party by, for example, serving him with
a subpoena.
[9] A draft
order was ultimately prepared which provided
inter alia
that
the trial is postponed
sine die
pending my ruling regarding
the admissibility and/or weight of the insured driver's statement and
sketch; the plaintiff was to file
heads of argument by 20 November
2017, the defendant by 27 November 2017 and the issue of costs to be
dealt with when I made the
ruling.
[10] Plaintiff's heads of
argument only came to my attention on 8 March 2018. The reason was
that they were
in between a bundle of authorities consisting of
printouts of several decided cases and other documents which were
delivered sometime
in January or early February 2018 (I assume by
plaintiff's correspondent attorneys) without any covering letter to
indicate for
which matter the bundle was provided. It was therefore
not known who delivered the bundle of documents and that it contained
the
heads of argument. On 8 March I decided I should clear the bundle
from my chambers and In doing so I unbundled the documents and
purely
fortuitously came upon the heads. This, regrettably, has led to an
unnecessary delay in giving my ruling. The blame for
this must surely
be laid squarely at the feet of the attorneys of the plaintiff who
delivered the documents in this fashion.
[11] Be that as it may, I am of the view
that the statement of the insured driver cannot be admitted
at this
stage as the best evidence in the circumstances of the case. The
situation may be different where It is shown that a concerted
attempt
has been made to secure the attendance of the insured driver at court
but a party was unable to do so.
[12] I think costs should be reserved
for final determination at the end of the trial when the presiding
judge will be in a better position to determine the issue.
[13] I
make the following ruling:
13.1
The
request by the plaintiff to admit the insured driver's statement as
the best evidence is refused.
13.2
The
issue of costs is reserved for determination during the trial.
RANCHOD
J
JUDGE OF
THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff
: Adv. P.C Eia
Instructed
by
: A Batchelor & Associates
Counsel
on behalf of Defendant
: Adv. M. De Meyer
Instructed
by
: Pule Inc.
Date heard
: 29 November 2017
Date
delivered
: 12 March 2018